Opinion
February 22, 1979
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller which denied petitioner's application for accidental disability retirement. On September 5, 1973 the petitioner, a nurse at the State University of New York-Upstate Medical Center, while attempting to pull an unconscious patient up from the foot of the bed to which he had slipped, experienced a sharp back pain when the patient moved unexpectedly and his weight resistance caught petitioner by surprise. Petitioner was subsequently injured on May 31, 1974 when attempting to rotate a patient's position on a Foster Frame bed, the bed unexpectedly stuck, placing the patient in a dangerous position. Petitioner pushed the bed manually to turn it. She again felt a back pain immediately. Petitioner is now permanently and totally disabled. Petitioner contends that each of the two events constitutes an accident within the meaning of section 63 Retire. Soc. Sec. of the Retirement and Social Security Law. The Comptroller is vested with the exclusive authority to determine applications for retirement (see Retirement and Social Security Law, § 74). The Court of Appeals has said in Matter of Croshier v. Levitt ( 5 N.Y.2d 259, 265), "`If reasonable minds might fairly differ' as to whether there was or was not an accident, `the Comptroller's independent judgment must be accepted'". The petitioner was performing regular work activities and her injury in neither instance was accidental in nature (Matter of Donohue v. Levitt, 55 A.D.2d 240). Determination confirmed, and petition dismissed, without costs. Greenblott, J.P., Sweeney, Kane, Main and Mikoll, JJ., concur.